WILLIAM HENRY MORRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Henry Morris appeals his departure sentence of 5 years for uttering a forged instrument. The court vacates the sentence and remands for resentencing, holding that the trial court improperly relied on factors already incorporated into the sentencing guidelines scoresheet and failed to resolve disputed prior criminal record entries in the defendant's favor.
The trial court's departure sentence is improper and must be vacated. Matters already factored into the guidelines scoresheet cannot serve as clear and convincing reasons for departure. Additionally, any uncertainty in scoring the defendant's prior record must be resolved in favor of the defendant, and the trial court must require corroborating evidence when a defendant disputes hearsay statements in the presentence investigation report.
[1] A trial court must resolve disputes regarding the accuracy of a defendant's prior criminal record presented in a presentence investigation report.
[2] When a defendant disputes the truth of hearsay statements in a presentence investigation report, the court must require the State to produce corroborating evidence.
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Join FLexlaw to unlock all legal intelligence“Any uncertainty in the scoring of the defendant's prior record shall be resolved in favor of the defendant, and disagreement as to the propriety of scoring specific entries in the prior record should be resolved by the trial judge.”
Establishes the rule that trial courts must resolve ambiguities in prior record scoring against the defendant
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Join FLexlaw to unlock all legal intelligenceMorris was convicted of uttering a forged instrument, a third degree felony. At sentencing, Morris disputed the accuracy of his prior criminal record …
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ORFINGER, Judge.
The defendant appeals from a departure sentence of 5 years’ imprisonment imposed after he was convicted of uttering a forged instrument, a third degree felony. We vacate the sentence and remand for resentencing.
At the sentencing hearing, the defendant disputed the accuracy of his prior criminal record as disclosed in the presentence investigation report (P.S.I.). Specifically, he contended that certain of the felony offenses should not have been considered, either because they were duplications of another offense or because no clear disposition was demonstrated. If the court had resolved the dispute is defendant’s favor, the recommended guideline sentence would be 2V2 to 3V2 years, instead of the recommended 3V2 to 4½ years as shown by the scoresheet prepared by the State. The trial court did not resolve this dispute, but instead imposed a departure sentence.
The written reasons for departure were: The Defendant, WILLIAM HENRY MORRIS, is a career criminal. His criminal involvement dates back almost 15 years to when he was convicted of the offense of uttering a forged instrument in Ann Arbor, Michigan. He has been in and out of prisons ever since with convictions for burglary, larceny, bail jumping, motor vehicle theft, and driving while intoxicated. In addition, he absconded on the present charge. The pattern of his course of criminal conduct is such that the recommended guidelines range is simply insufficient for society and this individual. Therefore, this Court finds and determines that it is necessary to go outside the guidelines and impose a sentence accordingly.
If the departure sentence could be sustained, the court’s failure to resolve the scoresheet dispute would be harmless, but because we cannot sustain the departure sentence, it is necessary that those differences be resolved. Committee Note to Florida Rule of Criminal Procedure 3.701(d)(5) provides: “Any uncertainty in the scoring of the defendant’s prior record shall be resolved in favor of the defendant, and disagreement as to the propriety of scoring specific entries in the prior record should be resolved by the trial judge.” Where a defendant disputes the truth of hearsay statements contained in a presen-tence investigation report, the court must require the State to produce corroborating evidence. See Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985); Davis v. State, 463 So. 2d 398 (Fla. 1st DCA 1985); Eutsey v. State, 383 So. 2d 219 (Fla.1980).
The reasons given for departure are essentially based on defendant’s prior record. Since the sentence was imposed here, the Florida supreme court has held that matters which are already factored into the guidelines scoresheet cannot be used as clear and convincing reasons for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). What the trial court is referring to when it alludes to defendant’s absconding on the present charge is not clear. We therefore have no way of determining whether that reason is valid or invalid, but even if valid (a point we do not decide) it would be necessary that we vacate the sentence because the State has not demonstrated beyond a reasonable doubt that the sentence would have been imposed in the absence of the impermissible reasons. Albritton v. State, 476 So. 2d 158 (Fla.1985).
The sentence is vacated and the cause is remanded for resentencing in accordance with the guidelines, absent clear and convincing reasons for departure.
SENTENCE VACATED. REMANDED.
DAUKSCH and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Brooks v. State, 490 So. 2d 173 (Fla. 5th DCA 1986)…erefore not under legal constraint at the time of committing the present offense. The burden was thus put upon the state to present competent corroborating evidence. This was not done. See Eutsey v. State, 383 So. 2d 219 (Fla.1980); Morris v. State, 483 So. 2d 525 (Fla. 5th DCA 1986); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985). The second and third reasons for departure are also invalid. It has been repeatedly held that the insufficiency of a guideline sentence to punish the wrongdoer is an in…
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Minnis v. State, 505 So. 2d 17 (Fla. 3d DCA 1987)…5); cf Stacey v. State, 483 So. 2d 542 (Fla. 1st DCA 1986) (Where defendant disputes the truthfulness of the statements concerning prior convictions and state offers no corroboration whatever, remand for corroboration is required.); Morris v. State, 483 So. 2d 525 (Fla. 5th DCA 1986) (same); Davis v. State, 463 So. 2d 398 (Fla. 1st DCA 1985) (same). The final judgment of conviction and sentence under review are, in all respects, Affirmed.…
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Viera v. State, 532 So. 2d 743 (Fla. 3d DCA 1988)…th of statements contained in a presentence investigation report ordinarily requires the state to produce corroborating evidence, Camp v. State, 501 So. 2d 81 (Fla.lst DCA 1987); Olivera v. State, 494 So. 2d 298 (Fla. 1st DCA 1986); Morris v. State, 483 So. 2d 525 (Fla.5th DCA 1986), the transcript of the sentencing proceeding reveals that Viera conceded to the trial court his illegal entry into the country. The trial court could properly consider Viera’s illegal status in the country as a manifestation of hi…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985)
- Davis v. State, 463 So. 2d 398 (Fla. 1st DCA 1985)